You Can’t Compare Apples to Oranges – So AI Artist Compares Fruit to Copyrights

Stephen Carlisle January 20, 2023

On January 10, 2023, Dr. Stephen Thaler filed a Motion for Summary Judgement in his suit against the U.S. Copyright Office. ¹ He is seeking to force the Copyright Office to grant him copyright to the artwork titled “A Recent Entrance to Paradise” in which the author was identified as “Creativity Machine,” an artificial intelligence art program.

The Copyright Office has three times before refused to grant registration. I wrote a previous blog post about the refusals. ² This is due to long standing rules of the Copyright Office which state:

“U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’ (citation omitted) Because copyright law is limited to ‘original intellectual conceptions of the author,’ the Office will refuse to register a claim if it determines that a human being did not create the work.” ³

For his part, Dr. Thaler’s lawyers state this does not count as actual law. They argue:

“This policy is unsupported by law. The plain language of the Copyright Act (the “Act”) does not restrict copyright to human-made works, nor does any case law. The USCO mistakenly
relies on dicta, predominantly from cases predating even the existence of modern computers, together with inappropriate reliance on a technical report that pre-dates autonomously creative
AI.” ⁴

This is merely a slight variation on the tired old tech excuse of “but tech is different! The old rules don’t apply!”

But let’s give Dr. Thaler a leg up. Let’s concede that the “Creativity Machine” can indeed create copyrightable work. How does Dr. Thaler acquire the copyright from the “Creativity Machine”?

Here’s where things get loopy.

“[I]f Dr. Thaler owned a fruit tree, he would own the fruit from that tree. This does not require the tree to execute a written agreement to transfer the fruit, the fruit belongs to Dr. Thaler by virtue of his relationship to the tree. Similarly, if Dr. Thaler owned a cow that birthed a calf, ‘[t]he general
rule, in the absence of an agreement to the contrary, is that the offspring or increase of tame or
domestic animals belongs to the owner of the dam or mother.’” ⁵

That’s right. Plaintiff here is comparing a copyright to a piece of fruit. Or a cow, take your pick.

But let’s give Dr. Thaler an even further leg up. Let’s agree that “Creativity Machine” can create copyrightable art, and that Dr. Thaler owns the art that “Creativity Machine” makes. Does this grant Dr. Thaler the copyright?

Well, no. And the answer is in the plain language of the Copyright Act.

The copyright in a work of art is separate and distinct from any copy of the work that exists. This is true even if you own the only copy in existence.

“Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object;…” ⁶

For example, let’s say I own a painting by a famous artist, let’s say Salvador Dali. Let’s say further that he created the painting especially for me, and gave the original painting to me as a gift. Does that make me the copyright owner?

Well, no. I would only own the copyright if, and only if, Dali executed a transfer of copyright ownership to me, in writing and signed by him. This is where the whole AI argument falls down.

This is because “Creativity Machine” is not a sentient being. It is incapable of creating contracts, much less an assignment of copyright. It would not have any cognitive sense of what a copyright is, much less an assignment of copyright. So if “Creativity Machine” cannot assign the copyright to Thaler, he is left with two possibilities.

The first is that “Creativity Machine” is his slave, much like the cow, and he can force “Creativity Machine” to transfer the copyright to him. Since virtually every country in the world has made slavery illegal, this is not a path that is – um – “fruitful.”

Next up is that somehow the output of “Creativity Machine” is a work for hire under the copyright act. Thaler’s attorney’s argue “[w]hile an AI system is not a legal person, and is not an employee in the sense of the labor code, in the context of the work for hire doctrine it acts as an employee.” ⁷

This begs the question. If “Creativity Machine” is not a “legal person” then how does it make the decision to be “employed” by Dr. Thaler. It can’t. The entire argument fails on the problem that “Creativity Machine” is not a sentient being. It cannot take the necessary steps to become an employee that could possibly generate a “work for hire.”

The Copyright Office has already ruled precisely on this point:

“A work made for hire must be either (A) prepared by ‘an employee’ or (B) by one or more ‘parties’ who ‘expressly agree in a written instrument’ that the work is for-hire. 17 U.S.C. § 101 (definition of ‘work made for hire’). In both cases, the work is created as the result of a binding legal contract—an employment agreement or a work-for-hire agreement. The ‘Creativity Machine’ cannot enter into binding legal contracts and thus cannot meet this requirement.” ⁸

But is a copyright really equivalent to a piece of fruit? I guess we’ll have to wait for the Judge’s ruling on that particular point.